Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism

Bruce Duthu

Abstract

American Indian tribes have long been recognized as “domestic, dependent nations” in the United States with powers of self-government that operate within the tribes’ sovereign territories. Yet, over the years, Congress, and more recently, the US Supreme Court, has steadily eroded these tribal powers. The erosion of tribal powers reflects the legacy of an imperialist impulse within the nation that operates to constrain or eliminate any political power that may compete with it. These developments have served to move the nation away from its formative commitments to a legally plural society, i ... More

American Indian tribes have long been recognized as “domestic, dependent nations” in the United States with powers of self-government that operate within the tribes’ sovereign territories. Yet, over the years, Congress, and more recently, the US Supreme Court, has steadily eroded these tribal powers. The erosion of tribal powers reflects the legacy of an imperialist impulse within the nation that operates to constrain or eliminate any political power that may compete with it. These developments have served to move the nation away from its formative commitments to a legally plural society, i.e. the idea that multiple nations and their legal systems can co-exist peacefully in shared territories. This book argues for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism that operated in the nation’s earliest years. It anticipates and redresses a number of objections - ideological, constitutional and institutional - that may impede the important work of revitalizing tribal systems of self-government. Ultimately, the book suggests that we employ conventions on tribal sovereignty, a model of bilateral nation-building, as the preferred institutional architecture to accommodate the competing social, cultural and legal interests between the Native and non-Native societies that cohabit our country.

End Matter

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